Citation Nr: 0718916
Decision Date: 06/22/07 Archive Date: 07/03/07
DOCKET NO. 07-07 206 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for chronic bilateral
hearing loss disability.
2. Entitlement to service connection for chronic tinnitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
J. T. Hutcheson, Counsel
INTRODUCTION
The veteran had active service from April 1944 to February
1946.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a February 2006 rating decision of the
St. Louis, Missouri, Regional Office (RO) which, in pertinent
part, denied service connection for bilateral hearing loss
disability and tinnitus. In June 2007, the veteran submitted
a Motion to Advance on the Docket. In June 2007, the Board
granted the veteran's motion.
FINDINGS OF FACT
1. Chronic bilateral hearing loss disability was not
manifested during active service or for many years
thereafter. The veteran's chronic bilateral sensorineural
hearing loss disability has not been objectively shown to
have originated during his wartime service.
2. Chronic tinnitus was not manifested during active service
or for many years thereafter. The veteran's tinnitus has not
been objectively shown to have originated during his wartime
service.
CONCLUSIONS OF LAW
1. Chronic bilateral hearing loss disability was not
incurred in or aggravated by wartime service, and service
incurrence may not be presumed. 38 U.S.C.A. §§ 1101, 1110,
1112, 1113, 1154(b), 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2006).
2. Chronic tinnitus was not incurred in or aggravated by
wartime service. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a)
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims (Court) held, in
part, that a Veterans Claims Assistance Act of 2000 (VCAA)
notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a claimant before the initial unfavorable RO
decision on a claim for Department of Veterans Affairs (VA)
benefits. In reviewing the veteran's claims of entitlement
to service connection, the Board observes that the RO issued
VCAA notices to the veteran in August 2005 and March 2006
which informed him of the evidence generally needed to
support a claim of entitlement to service connection and
assignment of an evaluation and effective date for an initial
award of service connection; what actions he needed to
undertake; and how the VA would assist him in developing his
claims. The August 2005 VCAA notice was issued prior to the
February 2006 rating decision from which the instant appeal
arises, and the March 2006 notice cured any defect in the
earlier notice. Cf. Prickett v. Nicholson, 20 Vet. App. 370,
377-78 (2006) (VA cured failure to afford statutory notice to
claimant prior to initial rating decision by issuing
notification letter after decision and readjudicating claim
and notifying claimant of such readjudication in the
statement of the case)
The VA has secured or attempted to secure all relevant
documentation to the extent possible. The veteran was
afforded a VA examination for compensation purposes. The
examination report is of record. There remains no issue as
to the substantial completeness of the veteran's claims.
38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R
§§ 3.102, 3.159, 3.326(a) (2006). Any duty imposed on the
VA, including the duty to assist and to provide notification,
has been met. Quartuccio v. Principi, 16 Vet. App. 183
(2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd
on other grounds, 444 F.3d 1328 (Fed. Cir. 2006);
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006);
Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16, 2007).
II. Service Connection
Service connection may be granted for disability arising from
disease or injury incurred in or aggravated by wartime
service. 38 U.S.C.A. § 1110 (West 2002). Where a veteran
served continuously for ninety days or more during a period
of war and an organic disease of the nervous system including
sensorineural hearing loss becomes manifest to a degree of
ten percent within one year of termination of such service,
such disease shall be presumed to have been incurred in
service even though there is no evidence of such disease
during the period of service. 38 U.S.C.A. §§ 1101, 1112,
1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. Presumptive periods are not intended to
limit service connection to diseases so diagnosed when the
evidence warrants direct service connection. The presumptive
provisions of the statute and VA regulations implementing
them are intended as liberalizations applicable when the
evidence would not warrant service connection without their
aid. 38 C.F.R. § 3.303(d) (2006).
A. Bilateral Hearing Loss Disability
Service connection for impaired hearing shall be established
when the thresholds for any of the frequencies of 500, 1000,
2000, 3000 and 4000 Hertz are 40 decibels or more; or the
thresholds for at least three of these frequencies are 26
decibels; or speech recognition scores using the Maryland CNC
Test are less than 94 percent. 38 C.F.R. § 3.385 (2006).
The Court has held that the provisions of 38 C.F.R. § 3.385
prohibit the award of service connection for hearing loss
where audiometric test scores are within the established
limits. Hensley v. Brown, 5 Vet. App. 155, 158 (1993) citing
Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).
The veteran's service medical records do not refer to hearing
loss disability. At his February 1946 physical examination
for service separation, the veteran exhibited bilateral 15/15
auditory acuity. Auditory acuity of 15/15 is normal. Smith
v. Derwinski, 2 Vet. App. 137, 140 (1992).
The veteran's service personnel records indicate that he
served aboard the U.S.S. Deuel from October 1944 to February
1946. The U.S.S. Deuel participated in the February 1945
invasion of Iwo Jima.
In his June 2005 claim for service connection, the veteran
advanced that he experienced significant combat-related noise
exposure while aboard the U.S.S. Deuel and subsequently
manifested bilateral impaired hearing. He clarified that he
was exposed to both landing craft engine noise and firing
five inch naval guns and 50 caliber machine guns.
At an October 2005 VA audiological examination for
compensation purposes, the examiner noted that the veteran
stated that "he does not perceive a hearing loss." He
presented a history of "unprotected exposure to hazardous
military noise as well as civilian noise." On
contemporaneous audiometric testing, he exhibited pure tone
thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
20
30
65
85
LEFT
25
15
45
60
80
Speech audiometry revealed speech recognition ability of 94
percent in the right ear and of 85 percent in the left ear.
The veteran was diagnosed with bilateral sensorineural
hearing loss disability. The VA examiner commented that:
The C-file contained no objective data on
which to base an opinion. However, if
the veteran's own testimony is considered
a valid and reliable source, it is less
likely than not his hearing loss and
tinnitus are service-connected. He does
not perceive a loss of hearing and does
not associate hearing loss or tinnitus as
related to the military.... In summary, it
is less likely than not that his hearing
loss or tinnitus are (sic)
service-connected.
In his March 2006 notice of disagreement, the veteran
reiterated that he believed that his chronic hearing loss
disability had been precipitated by his combat-related noise
exposure.
In his June 2007 Informal Hearing Presentation, the
accredited representative reiterated that the veteran
believed that his chronic bilateral sensorineural hearing
loss disability was related by his combat-related noise
exposure. The accredited representative advanced that the
veteran's statements at the October 2005 VA audiological
evaluation that he did not associate his hearing loss
disability with his wartime service were of no probative
value given that the veteran was not competent to make such
statements.
The Board has reviewed the probative evidence of record
including the veteran's written statements on appeal.
Chronic bilateral hearing loss disability was not shown
during active service or for many years thereafter. The
first clinical documentation of chronic hearing loss
disability is dated in October 2005, some 59 years after
service separation.
The veteran asserts that his chronic bilateral hearing loss
disability was precipitated by his significant inservice
combat-related noise exposure. The Board finds the veteran's
statements as to his alleged inservice noise exposure to be
consistent with the circumstances, conditions, and hardships
of his service aboard the U.S.S. Deuel during World War II.
However, based upon the record and analysis herein, the Board
concludes that the veteran's chronic bilateral sensorineural
hearing loss disability is not related to service. Further,
the provisions of 38 U.S.C.A. § 1154(b) (West 2002) do not
eliminate the need for medical nexus evidence. They merely
reduce the evidentiary burden on combat veterans as to the
submission of evidence of incurrence or aggravation of an
injury or disease in service. Clyburn v. West, 12 Vet. App.
296, 303 (1999); Libertine v. Brown, 9 Vet.App. 521, 523-24
(1996).
The examiner at the October 2005 VA audiological examination
for compensation purposes expressly negated the existence of
an etiological relationship between the veteran's chronic
bilateral sensorineural hearing loss disability and his
wartime service. No competent medical professional has
attributed the onset of the veteran's chronic sensorineural
hearing loss disability to his wartime service. Indeed, the
veteran's claim is supported solely by his accredited
representative's and his own written statements. A lay
witness is generally not capable of offering evidence
involving medical knowledge such as the existence or
causation of a particular condition. Espiritu v. Derwinski,
2 Vet. App. 492, 494 (1992).
In the absence of any objective evidence of the onset of the
claimed disorder during or proximate to active service or
that it otherwise originated during active service, the Board
finds that a preponderance of the evidence is against service
connection for chronic bilateral hearing loss disability.
B. Tinnitus
The veteran's service medical records make no reference to
tinnitus or ringing of the ears. In his June 2005 claim for
service connection, the veteran advanced that he incurred
chronic bilateral tinnitus as the result of his
combat-related noise exposure. He reported that he "had
this noise in my ears ever since I was in the Navy." In an
August 2005 written statement, the veteran reiterated that he
had experienced "this noise in my ears ever since I was in
the Navy." He clarified that he had "asked the corpsmen
about the noise in my ears and was told the (sic) it would
probably go away."
At the October 2005 VA audiological examination for
compensation purposes, the veteran complained of "mild,
bilateral, periodic tonal tinnitus of unknown onset and
etiology." He was reported to "not attribute his tinnitus
to the military." The examiner concluded that "it is less
likely than not his hearing loss and tinnitus are
service-connected." He opined further that:
Also, his tinnitus is no not (sic) beyond
that of normally occurring tinnitus. In
summary, it is less likely than not that
his hearing loss or tinnitus are (sic)
service-connected.
In his March 2006 notice of disagreement, the veteran
advanced that his chronic tinnitus was etiologically related
to his combat-related noise exposure. In his June 2007
Informal Hearing Presentation, the accredited representative
reiterated that the veteran believed that his bilateral
tinnitus was related to his combat-related noise exposure.
The accredited representative advanced that the veteran's
statements at the October 2005 VA audiological evaluation
that he did not associate the onset of his tinnitus with his
wartime service were of no probative value given that the
veteran was not competent to make such statements.
Chronic tinnitus was first clinically manifested in October
2005, some 59 years after service separation. While the
veteran asserted in both his June 2005 claim for service
connection and his August 2005 written statement that he
experienced "this noise in my ears ever since I was in the
Navy," he did not advance the existence of such an
etiological relationship at the October 2005 VA audiological
examination for compensation purposes. Indeed, the veteran
was reported to have specifically denied such a relationship.
The examiner at the October 2005 VA audiological examination
for compensation purposes expressly negated the existence of
an etiological relationship between the veteran's bilateral
tinnitus and his wartime service.
As noted above in the discussion of the veteran's entitlement
to service connection for chronic bilateral hearing loss
disability, the Board finds the veteran's statements as to
his inservice noise exposure to be consistent with the
circumstances, conditions, and hardships of his service
aboard the U.S.S. Deuel during World War II. 38 U.S.C.A.
§ 1154(b) (West 2002). However, a medical nexus between such
exposure and his tinnitus has not been established. No
competent medical professional has attributed the veteran's
tinnitus to his inservice combat-related noise exposure. The
veteran's claim is supported solely by the accredited
representative's and his own written statements. Such
evidence alone is insufficient to support an award of service
connection for the claimed disorder. Espiritu v. Derwinski,
2 Vet. App. 492, 494 (1992). Therefore, service connection
for chronic tinnitus is denied.
ORDER
Service connection for chronic bilateral hearing loss
disability is denied.
Service connection for chronic tinnitus is denied.
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs